D7.4: Implications of profiling practices on democracy

Title: CENTRALITY OF THE HUMAN AND THE LEGAL PERSON: POSITIVE AND NEGATIVE FREEDOM

Democracy existed long before the modern state. The word itself is taken from the Greek, who used it to refer to their aristocratic government (the Greek demos cannot be equated with our conception of a people as it concerned only the relatively small group of free men). Democracy basically means a kind of self-rule: those that govern and those that are governed are in principle the same, even if those that are governed participate in this self-rule by means of representation. The free men of the Greek city states enjoyed what Berlin has termed positive freedom: the freedom to govern, or – even more generally – freedom to rather than freedom from. Historically this positive freedom is probably older than what Berlin called negative freedom: freedom from interference by the state (or others). Negative freedom is a modern invention, that correlates with the centrality of the individual that arose in the renaissance and nourished on the French Déclaration des droit de l’homme et du citoyen at the end of the Enlightenment period and the American Bill of Rights.

It may seem that the rule of law, as discussed above, does not imply democracy. One could establish an independent judiciary without allowing the people to participate in government. The sustainability, however, of such a construction is debatable, because the check on those that govern will depend entirely on the judiciary. This seems hardly enough to counter the temptations for those that rule, to dismantle the independence of the judges and thus to abolish the rule of law. Aside from the more common arguments for democracy this adds another type of argument: democracy may be necessary to complement the rule of law in its aim to check the powers of government.  

At the same time, one can argue that a sustainable democracy in large scale, complex societies such as the European Information Society presumes an effective rule of law. Democracy organises positive freedom for all its citizens, via a mix of representative, deliberative and participatory procedures. To be able to partake in the full range of democratic practices (voting, forming an opinion, a shared opinion and ultimately partake in a new common sense) a person must be able to retreat from the social pressures that impact and influence her in order to achieve autonomy, come to her own conclusions, develop her own line of thought and her own lifestyle. This is not to claim that people can develop all this in sheer isolation, quite the contrary. It is precisely in counterpoint to other practices, opinions and lifestyles that we build our own. But to cope with the constant confrontation with others one needs space to reset; room for dissention and protection against asymmetric power relations. This is one of the things the rule of law provides for, by attributing to every citizen a set of human rights. Such rights give the individual citizen a claim that can be charged against the state – while appealing to the judicial authority of that same state. This is often called the paradox of the ‘Rechtsstaat’: resisting the state by means of the state. It presumes a particular distribution of powers within the state. It should be obvious that human rights would not amount to anything if not supported by an independent judiciary that embodies the possibility to resist the state, while at the same time sharing the authority of the state. The legal instrument that makes this possible is the individual (subjective) right, a category invented in the civil law tradition in conjunction with the concept of objective law, being the positive law that attributes these individual rights.

This brings us to another central notion in modern law: the notion of the legal subject or person. The legal subject is a subject that holds subjective rights that can be claimed in a court of law. The legal person is not congruent with the human person of flesh and bones; it is a legal, artificial construction aimed at (1) providing the human person with access to certain individual rights whilst (2) enabling one person to hold another person liable (on the basis of tort or contract law) or enabling the state to establish the guilt of a defendant (criminal law). The human person itself is undefined, underdetermined, in constant reconstruction; the legal person is rather like a mould or mask (persona) that indicates the role one plays within the legal system. Besides (1) providing access to the legal system, and (2) making the subject accountable within it, the legal persona (3) thus also protects the indeterminacy of the human person by resisting the conflation of the artificial legal person and the person of flesh and bones.

By providing individuals with the legal tools to participate - on an equal footing – in the public and private spheres, citizens are provided with positive freedom; by shielding the human person of flesh and bones from the inquisitive gaze of his fellow citizens and his government, citizens are provided with negative freedom. Thus the legal architecture that institutes the European constitutional democracy protects the positive and negative freedom of the individual human person by attributing legal subjectivity to all its citizens. That way one is at once protected against transparency (an aspect of negative freedom) and enabled to claim one’s individual rights against other legal subjects in a court of law (an aspect of positive freedom).